A couple of weeks ago I posted a paper written by one of my students in the class I recently taught at the University of Ottawa School of Law. I said there that two of the papers turned in by students in that class were so exceptional in their quality, and in the timeliness of their subject matter, that they deserved a broader audience.

The second of those papers was written by Garrett Hamel, a JD student at the University of Ottawa, on the topic of nuclear weapons life extension programs and international law. This is a very timely subject, as the question of the future expense of nuclear weapons modernization programs in the US is high politics right now. Garrett did a really excellent job in this paper reviewing life extension programs, and then considering the obligations on all states imposed in Article VI of the NPT related to nuclear disarmament. I highly recommend the piece to readers.

It reports that “sources” say the IAEA thought about releasing a new report presenting more information about the possible past military dimensions of Iran’s nuclear program, but then decided not to. These sources don’t know what would have been in the report, had it been written, although they are certainly willing to speculate about what may have been in the report, had it been written, and how important what may have been in the report, had it been written, might have been to ongoing negotiations between Iran and the IAEA.

This is the worst kind of speculative navel gazing about something that DID NOT HAPPEN, and so can’t be challenged on the basis of what ACTUALLY DID HAPPEN. Do they edit things over at Reuters?

Pretty clearly the purpose of this piece is to join with David Albright, whose latest little bit of propaganda is cited in the article, in trying to keep the PMD issue in the spotlight, and by so doing attempt to scuttle any potential deal between the P5+1/IAEA and Iran.

Ridding Syria of its chemical weapons (CW) is a costly undertaking. It is projected to cost many tens of millions of Euros. To this end both the United Nations and the Organisation for the Prohibition of Chemical Weapons (OPCW) have set up trust funds in support of the Syrian CW disarmament project. The OPCW has already managed to collect close to €60 million. International financial and in-kind support were required as Syria had notified the organisation upon its accession to the CWC that it was not in a position to pay for the CW destruction operations. Despite the international community’s assumption of responsibility for the disarmament project via the decisions taken by the OPCW Executive Council and the UN Security Council on 27 September, analysis of the list of donors reveals that neither Non-Aligned Movement (NAM) members (barring a single exception) nor Arab League states have come to the assistance of its fellow member state. Yet both bodies do repeatedly declare their full commitment to General and Complete Disarmament or a region free of non-conventional weapons for the Middle East.

Sponsoring CW Disarmament

In line with Security Council Resolution 2118 (2013) the money in the UN trust fund pays for the purchase and transport of non-military logistical equipment, water transportation, power generators, port shipping fees, drivers, food, fuel expenses, and other related services. According to a fact sheet released by the Joint Mission earlier this month, $7.014 million (€5.1 million) has been received from Denmark, Luxembourg, The Netherlands, Russia and the United States. Japan has pledged an additional $9 million (€6.55 million).

The OPCW operates two trust funds, one to cover operations in Syria and one to pay for the destruction of Syria’s CW. The fact sheet reports that they total €8.66 million ($9.049 million) and €42.4 million ($58.5 million) respectively in actual contributions and pledges. Last Tuesday the OPCW announced that Japan has donated €13.25 million ($18,2 million)—almost doubling the €7.1 million ($9.7 million) the country had initially pledged to both OPCW trust funds—to support operations related to the destruction of Syria’s CW programme. The grand total of funds available to the OPCW now stands at around €57.3 million ($78.74 million). As important are the in-kind contributions offered by several states and the European Union to both the UN and the OPCW. These include a variety of services and logistical support or the making available of special equipment.

The combined totals of funds entrusted to the OPCW represent the equivalent of over two-thirds of the organisation’s annual regular budget, a clear indicator of the magnitude of the undertaking. Adding the in-kind donations, the total value of contributions may actually exceed the OPCW’s annual regular budget. In addition, the OPCW is to recoup the verification costs from Syria. To this end the Council of the European Union decided to unfreeze funds from the assets blocked under EU sanctions against the Assad regime.

Those figures undeniably testify to the sizeable international support for eliminating Syria’s chemical warfare capacity. Closer examination, however, shows that the burden is carried mainly by the Europe, North America, Australia and New Zealand, and Turkey. Russia, Byelorussia, China and three other Asian states—India, Japan and South Korea—make up the remainder. In other words, not a single country from Africa and Central and South America, and a majority of CWC parties from the Asia–Pacific region do not contribute in any way to the project. Even tiny Andorra has managed to transfer €15,000.

The friend of my friend is my . . . frenemy?

Of the 120 members of the Non-Aligned Movement (NAM), which always calls for general and complete disarmament, the elimination of weapons of mass destruction, and international cooperation and development, only India has pledged €736,000 in support of the destruction of CW from fellow NAM member Syria. Iran, a close ally of the Syrian government, currently chairs the group.

Even more striking is the total lack of any form of contribution from the Middle East. (Turkey belongs to the Western Europe and Other States Group of parties to the CWC.) Iran, for instance, actively promotes chemical disarmament. Each year during the Conference of the States Parties it organises an event commemorating the chemical warfare victims of the 1980–88 war with Iraq. Since November 2012 a memorial sponsored by Iran adorns the garden of the OPCW headquarter building. The statue represents a victim gradually losing his/her life from the effects of chemical weapons whose body is simultaneously converted into peace doves. Without concrete action today to safeguard the Syrian people from the consequences of the chemical attacks (irrespective of who might be the perpetrator), Ypres, Sardasht and Halabja are reduced to mere incidents in the history of warfare and denied meaningful commemoration. Being close, Iran may want to press the Syrian government to speed up the removal of the precursor chemicals and intervene to offer its expert medical assistance in the field. Chairing the NAM, it may wish to press members to actively contribute to the international CW removal effort in Syria. For a government trying to reconnect with all constituencies of the global community, active and demonstrable participation might send many positive signals about its political commitment to disarmament in all its national and international dimensions.

None of Syria’s Arab League partners (all of whom except Egypt are parties to the CWC) have even made a token contribution. Some members may have deep-rooted issues with President Bashar al-Assad, but the money does not actually go to him. It contributes to eliminating the possibility that civilians do not have to face another Ghouta amid all the ongoing carnage. Yet, the regional organisation will undoubtedly profess its absolute commitment to a Middle East free from non-conventional weapons at the Preparatory Committee of the NPT Review Conference starting in New York next April. Particularly, it will express its profound frustration with the fact that no meeting to rid the region from biological, chemical and nuclear weapons, and missiles has yet been convened as requested by the final document of the 2010 Review Conference. And for sure it will blame precisely those countries that contribute the most to the elimination of Syria’s CW.

Will somebody point out that by supporting the elimination of Syria’s chemical weapons, Middle Eastern states may actually change the security calculations in their region (including those by Israel), and that therefore they, rather than outsiders, could contribute greatly to their desired goal of regional disarmament?

I just wanted to quickly bring attention to the program of a symposium on chemical weapons law that is being organized by my friend Mirko Sossai at Roma Tre University on March 20-21.

This is a truly excellent lineup of participants and speakers, including our good friend Jean Pascal Zanders. Many of the very best people working in the field will be attending. I can’t attend myself, but I wish I could.

Just wanted to call attention to a few new pieces by friends that make important contributions.

First, a new piece by Peter Jenkins over at Lobelog on the recently released IAEA DG report on Iran’s safeguards compliance. Peter states very clearly and correctly that:

The latest IAEA report suggests that Iran is in full compliance with its Nuclear Non-Proliferation Treaty safeguards obligations, and states unequivocally that “the Agency continues to verify the non-diversion of declared nuclear material at nuclear facilities…declared by Iran under its Safeguards Agreement.

Second, a new piece by Yousaf Butt in Reuters, offering a thorough and insightful critique of the IAEA’s politicization and failings under current DG Yukiya Amano.

With the latest round of talks between the P5+1 and Iran in Vienna, there has been another resurgence of writing on the PMD issue. Some good. Most uninformed and/or agenda-driven.

One theme that I’ve noticed running throughout a lot of the commentary on the PMD issue is speculation about the intentions behind whatever nuclear weapons related R&D work went on in Iran up until 2003. And this speculation is often presented more as a statement of fact than as speculation.

According to my research, Iran made the decision to proliferate sometime after March 1984, but before the end of 1985.

Here and elsewhere, observers are speculating about Iran’s intention in doing whatever weapons related R&D they were doing. They’re speculating that Iran’s intention was linear – i.e. to progress linearly from R&D straight onward to building and fielding a nuclear weapon.

I think it’s fallacious, and possibly specious to assume that this was or is Iran’s intention. And more to the point, it is pure, unevidenced speculation.

Don’t the facts of Iran’s R&D work with nuclear weapons – even accepting as facts those allegations that are controversial and that Iran has denied – equally or more persuasively support the hypothesis that Iran’s intent or purpose in carrying out that R&D work was to reach a level of technical and industrial capacity and knowledge at which Iran would be capable of producing a nuclear weapon, without necessarily taking the decision to build a nuclear weapon?

Nuclear hedging refers to a national strategy of maintaining, or at least appearing to maintain, a viable option for the relatively rapid acquisition of nuclear weapons, based on an indigenous technical capacity to produce them within a relatively short time frame ranging from several weeks to a few years.

In its most advanced form, nuclear hedging involves nuclear fuel–cycle facilities capable of producing fissionable materials (by way of uranium enrichment and/or plutonium separation), as well as the scientific and engineering expertise both to support them and to package their final product into a nuclear explosive charge.

Nuclear hedging is a strategy that may be adopted either during the process of developing a bomb or as part of the rollback process, as a way of retaining the option of restarting a weapons program that has been halted or reversed.

So again, don’t the facts of Iran’s R&D work on nuclear weapons pre-2003 better fit a nuclear hedging policy, than a policy of a linear march to a bomb? I mean it’s fairly clear that Iran’s impetus for doing the nuclear weapons R&D that it did during this period was its traumatic war with Iraq, which had included the use of chemical weapons against Iran, and the continued threat that Saddam Hussein posed to Iran. Doesn’t it make sense that, faced with this very real threat and history, Iran would want to develop the capacity to produce nuclear weapons to defend itself in the case of another war with Iraq? But again, just because it makes sense that they might want the capability to do this, does not mean that they would have ever exercised the option to build a nuclear weapon.

It’s also fairly clear that Iran stopped its nuclear weapons R&D work around 2003, due to the invasion of Iraq by the West – effectively removing the Iraqi threat – and to concerns that if its own weaponization R&D work were discovered, it might be next on the US hit list. To me, this is a persuasive narrative with bookends, and again fits perfectly with the idea that Iran achieved capability in some aspects of weaponization, and overall is keeping its options open with regard to the future, but has not made a decision to build a nuclear weapon. In short, that Iran’s case is perfectly described by the concept of nuclear hedging.

It is well known that there are a number of states in the world today who are nuclear weapons threshold states – who have all the necessary knowledge and the technical and industrial capabilities to build a nuclear weapon in short order. And the fact that they have not yet exercised that option, is proof of the prudence that a number of states see in achieving and maintain the capability to build a nuclear weapon, but choosing not to exercise that option.

So again, whatever nuclear weapons R&D work Iran did in the past, we do not know and should not speculate about their intent in doing that work and obtaining that knowledge and capability. Nor should we speculate, as so many do, what Iran’s intent is regarding the future. There is absolutely no evidence, and this conclusion is borne out by the conclusions of the US intelligence community, that Iran is currently seeking to build a nuclear bomb, or that they will seek to do so in the future.

Another thing that you always hear when particularly US government officials, but also IAEA officials, talk about the PMD issue, is that it’s necessary to include the resolution of the PMD issue in the negotiations between Iran and the P5+1/IAEA, because only through Iran’s transparency about this work, and admission of its having been done, can the international community begin to build trust with Iran, and confidence that Iran is not currently engaged in nuclear weapons related work.

But have you ever stopped to really think about that rationale, and whether it makes sense? How, in practical terms, will knowing the details about what Iran did in the past regarding weaponization R&D, give other states or the IAEA any meaningful confidence about what Iran is or is not doing now regarding weaponization R&D?

How will knowing the details of what Iran did in the past, and having Iran admit to them, actually increase other states’ ability to trust Iran now?

I confess I don’t see a real, practical connection between the propositions in either of these questions.

Don’t we already have the conclusions of the US intelligence community that, whatever weaponization R&D work was going on in Iran pre-2003, it has been halted since then, and that there is no evidence that Iran has made or will make a decision to re-start it or to build a nuclear weapon?

Isn’t that exactly what this rationale says we need to know about Iran’s current program?

So how does knowing more about the details of what happened 15-20 years ago increase our confidence about what is going on now, or our trust in Iran about the future? To me it doesn’t make sense logically.

To me it appears that IAEA/Western insistence on having the PMD issue as part of the P5+1/IAEA negotiations with Iran, is more persuasively explained as a witch hunt for past truth and a concession of embarrassment for Iran which, while perhaps cathartic and a moral victory for the West, really serves no practical purpose for the present or future. It strikes me as more of a truth and reconciliation mission, which I think Iran understandably has no interest in. As Mark Hibbs has explained:

On February 3, Iran’s Foreign Minister, Javad Zarif, visited the German Council of Foreign Relations in Berlin. Zarif explained to us that Iran has no aim or interest in having nuclear weapons. In fact, he said that the credibility of Iran’s regime was founded upon Iran not having such an ambition or interest. That’s the crux. If the credibility of Iran’s regime rests on its disavowal of nuclear arms, then any admission by Iran to the IAEA that the Islamic Republic of Iran has been engaged in nuclear weapons-related research or experiments–which prima facie would have to be reported to the Board of Governors– would severely damage the regime’s reputation. Shia theology might imply that nuclear weapons are sinful, but the IAEA’s dossier poses a potential major credibility problem. For Iran at any point to admit that it worked on nuclear weapons would be orders or magnitude more significant than Iran admitting, as it did in 2003, to having failed to declare to the IAEA a flurry of nuclear activities which could be justified by Iran’s peaceful nuclear program.

So there is zero likelihood that Iran will ever sign a confession detailing nuclear weapons related R&D that may have gone on pre-2003, and for the West and the IAEA to insist on such a confession is a sure way to guarantee the failure of the current diplomatic effort with Iran.

I was having a conversation earlier today with a colleague, and he raised an insightful question about the purpose of international law, and how it might shed some light on how this issue should be dealt with in the context of the current negotiations between Iran and the West.

Most of the corpus of international law, including the sources of nuclear nonproliferation law such as the NPT and IAEA safeguards agreements, is most analogous to domestic tort and contract law, which focus on identifying breaches of law as between parties, and ensuring that the party responsible for the breach makes the damaged party whole. As long as an extra-judicial settlement of the issue can be reached among the parties, in these areas the law is generally happy to approve of that settlement, and allow the parties to move forward on the basis of that settlement. If that settlement can be reached – and it is often necessary or at least useful in order for such a settlement to be reached – without dragging into public view all of the sins of the parties against each other, and requiring a confession of guilt by the party responsible for the breach, the law will recognize the settlement in the interest of moving forward.

The exception to this paradigm occurs in criminal law, which is purposed in a clear explication of the facts of the breach of law, in order to establish the guilt of the responsible party, and to mete out an appropriate punishment for that party. Revelation of the facts of the case is also considered necessary both for the sake of the victim, as well as for the sake of broader society. In criminal law there typically is no such thing as a non-judicial settlement between the perpetrator and the victim that the law will recognize. A judicial finding of guilt or innocence is necessary for the disposition of the case.

In the context of negotiations between Iran and the West/IAEA over Iran’s nuclear program, I think it is clear that we are and should remain within the first, contract/tort law paradigm, and that we should not allow considerations more fitting for a criminal law paradigm to interfere – and they will interfere – in the peaceful resolution of this dispute, which can then allow the parties to move forward.

As I mentioned a few posts back, I spent about three weeks this past January teaching a short course at the University of Ottawa School of Law. I taught my signature “WMD Law & Policy” course to about ten students. I was genuinely impressed by the quality of the students in the course, particularly when they turned in their end-of-the-course papers to be assessed.

Each student chose a subject relevant to the course on which to write their paper. The results were on the whole truly excellent.

I thought that two papers in particular were so exceptional in their quality, and in the timeliness of their subject matter, that they deserved a broader audience. One of those papers is by Juris Doctor candidate Jennifer Kiss, who wrote her paper on the topic of: The United States’ Decision to Ignore the Use of Chemical Weapons in the Iran-Iraq War: An Involvement that Remains Unpunished. This is a tremendously important, and timely subject given the recent confirmation of US knowledge of Iraq’s use of chemical weapons during the Iran-Iraq war, and its continued material support for Iraq notwithstanding this knowledge.

I asked Jennifer for her permission to post her paper on ACL, and she kindly agreed.

On the topic of her paper, I think that, just from a moral standpoint, the revelations about US support for Iraq, in full knowledge that Iraq was using chemical weapons, seriously weaken the credibility of US protestations about the use of chemical weapons by any other state, including Syria.

But Jennifer goes further and uses some of the most cutting-edge legal scholarship on shared responsibility in international law, to argue that the US should additionally be seen to share in Iraq’s legal liability for this grave violation of the laws of armed conflict. As Jennifer writes:

The revealed declassified CIA documents provide substantial amounts of concrete evidence proving that the United States not only knew about the Iraqi use of chemical weapons in the war, but that the Pentagon and the U.S. government determined that using those weapons against soldiers was acceptable because it was “just another way of killing people.” From these CIA documents and through it’s decision to play an active role in the planning of the Fao Peninsula battle strategy of Iraq in 1988, it is acceptable to believe that the U.S. knew that Iraqi military strategy involved the use of chemical weapons, therefore any plans devised by the U.S. must have included the use of chemical weapons.

As a result, it can be argued that the United States agreed to being involved in the internationally wrongfully committed acts by Iraq. Under the Article 47 of the ASR, since both states can be viewed as being involved in the wrongful acts, both the U.S. and Iraq should incur responsibility and both should be obligated to provide reparation to the Iran. The United States can be seen as having a cooperative responsibility as it aided in Iraq in committing the wrongful act against Iran, which parallels the ICJ’s decision in the Nicaragua Case when it found that both the U.S. and Honduras shared liability for the damage incurred by Nicaragua.

I think this is an excellent and persuasive analysis of an important, and too long underpublicized topic. I highly recommend it to readers.